The very different nature of childhood offending behaviour from adult offending should be reflected in law to reduce adverse implications later in life.  We welcome the Scottish Government's commitment to raising the minimum age of criminal responsibility and to reducing the impact of adverse childhood experiences suffered by vulnerable young people in its Programme for Government 2017-18

Two judgments upholding human rights challenges to Scottish legislation in 2017 point to the need for an urgent review of the effect of childhood offending behaviour later in life. The first related to the disclosure system. The second related to the availability of a statutory defence where the person had previously been charged with a relevant sexual offence, even if that charge was during childhood. Clan Childlaw intervened in the latter case.

Further reading: Article in the Journal of the Law Society of Scotland ‘Caught in the past’, by Alison Reid, Principal Solicitor, Clan Childlaw 

P v the Scottish Ministers: automatic disclosure of criminal conviction found to breach article 8 rights 

P(AP) v The Scottish Ministers [2017] CSOH 33, 28 February 2017

The Court of Session found that automatic disclosure by Disclosure Scotland of a deemed criminal conviction for a minor offence handled by the children's hearing system when the petitioner was 14 constituted an “unlawful and unjustifiable interference” with the petitioner’s rights under article 8 of the European Convention on Human Rights. Lord Pentland found that the scheme failed to provide any (or at least any sufficient) safeguards to enable the proportionality of the admitted interference in the petitioner’s case to be evaluated fairly and objectively. Proportionality should be assessed on the individual circumstances considered together, e.g. the nature of the offence, the age of the petitioner when it took place, the fact it was handled by the children's hearing system and the likelihood of reoccurrence of the offending behaviour. In this case disclosure was disproportionate.

In response to the judgment, the Scottish Government has proposed the Draft Police Act 1997 and Protection of Vulnerable Groups (Scotland) Act 2007 Remedial Order 2018.  

Clan Childlaw submitted its consultation response on the proposed draft Order on 23 November 2017, which concludes that it does go far enough to meet the requirements of the judgment or article 8 ECHR. We welcome reference in the Statement of Reasons for the proposed draft Order to the possibility of further policy changes being developed as part of Scottish Ministers’ wider programme in relation to proposals on the minimum age of criminal responsibility, rehabilitation of offenders or the forthcoming review of the 2007 Act and the PVG Scheme.

AB v HMA: section of Sexual Offences (Scotland) Act 2009 found incompatible with article 8  rights

AB v Her Majesty’s Advocate [2017] UKSC 25, 5 April 2017

When the appellant was aged 14 he was charged with lewd and libidinous practices and contravention of section 6 of the Criminal Law (Consolidation)(Scotland) Act 1995. The matter was referred to the Children’s Reporter who, it is understood, took no further action. When the appellant was aged 19, he was charged with engaging in sexual intercourse with a girl who was under 16 years old. He did not deny that sexual intercourse took place, and wished to rely on the defence that he reasonably believed that the girl had attained the age of 16 years. However, he was not able to rely on this defence as the statute does not allow the use of this defence if the person has previously been charged with a “relevant sexual offence”. The rationale behind the legislation put forward by the Lord Advocate was that when an accused has been previously charged by the police with a relevant sexual offence, the individual has previously received an “official warning”. This “official warning” means that they must make sure that any future sexual partner is aged 16 or over. The offences with which the appellant was charged when he was aged 14 are listed as “relevant sexual offences”. The appellant challenged the legality of the statutory provision by arguing that it was incompatible with the European on Convention Human Rights.

The Supreme Court ruled that section 39(2)(a)(i) of the Sexual Offences (Scotland) Act 2009 was incompatible with article 8 ECHR and that it was outwith the legislative competence of the Scottish Parliament. This incompatibility derived from a disproportionate interference with the appellant’s article 8 right.

Clan Childlaw Intervention

Clan Childlaw intervened in AB v HMA to put forward a child law perspective and supported the argument that prevailed. This decision is consistent with the approach taken in the Children’s Hearings System that children who are charged with offending behaviour are considered having regard to their welfare and not on a punitive basis.

Read our Intervention

Read our  Note on the judgment

The relevant section of the Sexual Offences (Scotland) Act 2009 must be amended in line with the Supreme Court judgment. 

Further reading: 

UK Human Rights Blog article by Seonaid Stevenson

Article in the Journal of the Law Society of Scotland ‘Prior warnings and reasonable belief’, by Dominic Scullion, solicitor and senior associate, Anderson Strathern LLP